UNITED STATES PATENT AND TRADEMARK OFFICE
`
`__________________
`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`___________________
`
`
`SYMANTEC CORP., and
`BLUE COAT SYSTEMS, INC.,
`Petitioner,
`
`v.
`
`FINJAN, INC.,
`Patent Owner.
`
`____________________
`
`Case IPR2015-018921
`U.S. Patent No. 8,677,494
`
`__________________________________________________________
`
`PATENT OWNER’S MOTION TO EXCLUDE
`
`
`1 Case IPR2016-00890 has been joined with the instant proceeding.
`
`
`
`
`
`__________________
`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`___________________
`
`
`SYMANTEC CORP., and
`BLUE COAT SYSTEMS, INC.,
`Petitioner,
`
`v.
`
`FINJAN, INC.,
`Patent Owner.
`
`____________________
`
`Case IPR2015-018921
`U.S. Patent No. 8,677,494
`
`__________________________________________________________
`
`PATENT OWNER’S MOTION TO EXCLUDE
`
`
`1 Case IPR2016-00890 has been joined with the instant proceeding.
`
`
`
`
`
`
`Introduction
`
`I.
`
`
`
`Patent Owner’s Motion to Exclude
`IPR2015-01892 (U.S. Patent No. 8,677,494)
`
`Pursuant to 37 C.F.R. § 42.64, Patent Owner Finjan, Inc. (“Patent Owner”),
`
`through this Motion to Exclude, moves to exclude certain evidence, discussed
`
`below, that Petitioner Symantec Corp. and Blue Coat Systems, Inc. (together,
`
`“Petitioner”) submitted in this proceeding. The Board should grant Patent Owner’s
`
`Motion to Exclude for the reasons set forth below.
`
`II.
`
`Patent Owner’s Objections Were Timely Made.
`
`Patent Owner timely raised the objections set forth herein. On April 1,
`
`2016, Patent Owner timely served Petitioner with objections to the exhibits in its
`
`Petition. Paper 11. On September 23, 2016, Patent Owner timely served Petitioner
`
`with objections to Exhibits 1026, 1027, 1030–1032 and 1036–1043 in its Reply
`
`brief. Paper 32. Patent Owner does not assert any new objections in this Motion
`
`to Exclude.
`
`III. The Board Should Exclude Exhibits Outside the Proper Scope of Reply
`(Exs. 1026, 1027, 1030-1032 and 1036-1043).
`
`Petitioner’s Reply improperly introduced new evidence and arguments that
`
`are inadmissible under 37 C.F.R. § 42.61, and are properly subject to exclusion.2
`
`
`2 The Board granted Patent Owner’s request to identify specific portions of
`
`Petitioner’s Reply and evidence that Patent Owner contends is outside the proper
`
`scope of reply, to be submitted by Due Date 4. Paper 37.
`
`1
`
`
`
`
`Belden Inc. v. Berk-Tek LLC, 803 F.3d 1064, 1081 (Fed. Cir. 2015) (“a party may
`
`Patent Owner’s Motion to Exclude
`IPR2015-01892 (U.S. Patent No. 8,677,494)
`
`move to exclude evidence, whether as improper under the response-only
`
`regulation, under the Trial Practice Guide’s advice, or on other grounds.”) (citation
`
`omitted). These belated submissions should be excluded because it is improper for
`
`Petitioner to introduce new evidence and arguments in its Reply in order to resolve
`
`the deficient arguments and evidentiary shortcomings of its Petition.
`
`Specifically, Petitioner introduced for the first time in its Reply 18 new
`
`exhibits, including a new 70-page rebuttal declaration from Dr. Davidson,
`
`additional prior art references, and additional support to attempt to establish the
`
`public accessibility of the Swimmer document. There is no reason why Petitioner
`
`could not have included such evidence in its Petition. To the contrary, Exhibits
`
`1026, 1027, 1030–1032 and 1036–1043 contain information that was available at
`
`the time Petitioner filed its Petition.
`
`First, Petitioner improperly offers Exhibits 1026 and 1037–1041 in its Reply
`
`as a belated attempt to revise its argument or supplement its evidence that the
`
`Swimmer Document was publicly available prior art. The Board should not
`
`consider this evidence because it was available at the time that Petitioner filed its
`
`Petition. Office Patent Trial Practice Guide, 77 Fed. Reg. 48,156, 48,767 (Aug.
`
`14, 2012) (“[A] reply that raises a new issue or belatedly presents evidence will not
`
`be considered and may be returned. The Board will not attempt to sort proper from
`
`2
`
`
`
`
`improper portions of the reply.”). “[I]ndications that a new issue has been raised in
`
`Patent Owner’s Motion to Exclude
`IPR2015-01892 (U.S. Patent No. 8,677,494)
`
`a reply include new evidence necessary to make out a prima facie case for …
`
`patentability or unpatentability … and new evidence that could have been
`
`presented in a prior filing.” Office Patent Trial Practice Guide, 77 Fed. Reg. at
`
`48,767.
`
`Petitioner also should have submitted Exhibits 1030–1032 and 1036 with the
`
`Petition instead of using its Reply to supplement its prima facie invalidity case for
`
`the ’494 Patent. Dr. Davidson confirmed that he could have cited Ex. 1032 and
`
`Ex. 1030 in his earlier declaration that was submitted with Petitioner’s Petition
`
`(Ex. 1018), but that he and counsel made a conscious decision not to use them in
`
`the Petition. Ex. 2041 (“Davidson Tr.”) at 12:13–13:8. Accordingly, at the very
`
`least, paragraphs 18, 19, 27, 28, 33, 39, 40, 46, 63, 98 of Davidson’s Rebuttal
`
`Declaration (Ex. 1027) should be excluded and any reliance on Denning (Ex.
`
`1032) (including Ex. 1042, which Petitioner introduces to establish Denning as
`
`publicly available prior art) and Comer (Ex. 1030), should be excluded as improper
`
`new evidence belatedly introduced in a Reply.
`
`Petitioner may not use its Reply as a vehicle to add in new evidence that
`
`could have been included in its Petition, and all such evidence should be excluded.
`
`See, e.g., Toshiba Corp. v. Optical Devices, LLC, Case IPR2014-01447, Paper 34
`
`at 44–47 (P.T.A.B. Mar. 9, 2016) (“[Section 42.23(b)], however, does not
`
`3
`
`
`
`
`authorize or otherwise provide a means for supplementing the evidence of
`
`Patent Owner’s Motion to Exclude
`IPR2015-01892 (U.S. Patent No. 8,677,494)
`
`record.”); Toyota Motor Corp. v. Am. Vehicular Scis. LLC, Case IPR2013-00424,
`
`Paper 50 at 21 (P.T.A.B. Jan. 12, 2015) (“[Petitioner] cannot rely belatedly on this
`
`evidence in its Reply and Reply Declaration of [its expert] to make up for the
`
`deficiencies in its Petition.”); The Scotts Co. v. Encap, LLC, Case IPR 2013-00110,
`
`Paper 79 at 5–6 (P.T.A.B. June 24, 2014) (declining to consider untimely evidence
`
`and the arguments based on the belated evidence because the patent owner “was
`
`denied the opportunity to file responsive evidence.”).
`
`Second, in its Reply, Petitioner improperly attempts to introduce four new
`
`references to supplement its grounds for invalidity of the ’494 Patent based on the
`
`Swimmer Document. Specifically, Petitioner relies on Exhibits 1030–1032, 1036
`
`to support its assertion that Swimmer discloses a database. See, e.g., Ex. 1027, ¶¶
`
`18, 19, 27, 28, 33, 39, 40, 46, 63, 98 (relying on these exhibits to support a
`
`database as a flat-file database). This is improper because the Board instituted IPR
`
`of the ’494 Patent based on Swimmer alone, thus these additional references are
`
`irrelevant and should be excluded under FRE 401–403 because they are not part of
`
`the instituted grounds in this IPR proceeding.
`
`Third, Petitioner’s belated Reply should be excluded as unfairly prejudicial
`
`to Patent Owner. The Board “may exclude relevant evidence if its probative value
`
`is substantially outweighed by a danger of … unfair prejudice.” Fed. R. Evid. 403.
`
`4
`
`
`
`
`“‘Unfair prejudice’ within its context means an undue tendency to suggest decision
`
`Patent Owner’s Motion to Exclude
`IPR2015-01892 (U.S. Patent No. 8,677,494)
`
`on an improper basis….” Fed. R. Evid. 403 advisory comm. notes (2011). Here,
`
`Patent Owner did not have an opportunity to substantively respond to Petitioner’s
`
`untimely new evidence and arguments. It would be highly prejudicial for the
`
`Board to allow Petitioner to sandbag the Patent Owner with these belated materials
`
`by permitting Petitioner’s untimely Exhibits to remain in the record and by
`
`considering such Exhibits. Therefore, under FRE 403, the Board should exercise
`
`its discretion in excluding Exhibits 1026, 1027, 1030–1032 and 1036-1043.
`
`IV. The Board Should Exclude the Declaration of Jack Davidson (Exs. 1018
`and 1027).
`
`The testimony of Dr. Jack Davidson should be excluded because his
`
`opinions are conclusory, do not disclose underlying facts or data in support of his
`
`opinions, and are unreliable. Fed. R. Evid. 702; Intellectual Ventures Mgmt., LLC
`
`v. Xilink, Inc., Case IPR2012-00020, Paper 34 at 10 (P.T.A.B. Feb. 11, 2014)
`
`(stating that an expert’s “conclusory testimony is entitled to little or no weight.”);
`
`Tietex Int’l, Ltd. v. Precision Fabrics. Grp., Inc., Case IPR2014-01248, Paper 39 at
`
`17 (P.T.A.B. Jan. 27, 2016) (a lack of objective support for an expert opinion “may
`
`render the testimony of little probative value in [a patentability] determination.”)
`
`(quoting Ashland Oil, Inc. v. Delta Resins & Refractories, Inc., 776 F.2d 281, 294
`
`(Fed. Cir. 1985).
`
`For example, Dr. Davidson’s testimony is conclusory and fails to disclose
`
`5
`
`
`
`
`underlying facts in data in support of his opinion that Swimmer discloses a
`
`Patent Owner’s Motion to Exclude
`IPR2015-01892 (U.S. Patent No. 8,677,494)
`
`database. Dr. Davidson’s testimony is unreliable in that it is directly contradicted
`
`by Petitioner’s definition of “database” by distinguishing between an event log and
`
`a database, while Petitioner argues the exact opposite. Compare Davidson Tr. at
`
`86:9–15 (Q. So in your opinion the ‘194 Patent distinguishes event logs from the
`
`security database, correct? […] A. Yes. I mean, they’re being used for two
`
`distinct things, in my opinion) with Paper 31 at 3 (“Nor does it state that the
`
`database cannot be in the form of a flat file, event log, or log file.”).
`
`He also indicated that operations must be deemed suspicious to qualify as a
`
`list of computer operations. Davidson Tr. at 81:10–21 (“I have to deem it to be
`
`suspicious to write it to that list of suspicious computer operations.”). For
`
`example, Dr. Davidson’s testimony is conclusory and cites to irrelevant underlying
`
`facts while ignoring relevant facts in support of his opinion that the operations
`
`identified by Swimmer’s “audit system” are the same types of operations described
`
`as ‘suspicious operations’ in the ‘494 Patent. See Ex. 1018, ¶ 102 (identifying a
`
`disclosure in a parent application that discusses “fundamental computer
`
`operations” and ignoring disclosures relating to “suspicious operations”).
`
`Additionally, Dr. Davidson’s testimony is conclusory and fails to disclose
`
`underlying facts and data in support of his opinions that “one of ordinary skill in
`
`the art would have considered Swimmer’s audit records to be a form of database”
`
`6
`
`
`
`
`and “the audit system (or a portion of it) stores the security profile data (e.g., audit
`
`Patent Owner’s Motion to Exclude
`IPR2015-01892 (U.S. Patent No. 8,677,494)
`
`records) in the database.” See Ex. 1018, ¶¶ 108, 110. Further, Dr. Davidson’s
`
`testimony is conclusory and fails to disclose underlying facts and data in support of
`
`his opinion that “it would have been obvious that this security profile data could
`
`have been stored in any suitable format or structure.” See Ex. 1018, ¶ 111. Still
`
`further, Dr. Davidson’s testimony is conclusory and fails to disclose underlying
`
`facts and data in support of his opinion that “it would have been obvious for one of
`
`ordinary skill in the art to wait for the entire native file to be generated and then
`
`convert the native file to the NADF file format.” See Ex. 1027, ¶ 46.
`
`Such inconsistent and unsupported statements in Dr. Davidson’s testimony
`
`demonstrate that his opinions are conclusory, unreliable and not credible. Because
`
`Dr. Davidson is not credible and has provided unreliable opinions, his testimony
`
`cannot assist the trier of fact and should be afforded no weight. Fed. R. Evid. 702;
`
`Fed. R. Evid. 401; Fed. R. Evid. 402. Therefore, the Board should exclude
`
`Exhibits 1018 and 1027.
`
`V. The Board Should Exclude the Hall-Ellis Declaration (Ex. 1006).
`The testimony of Dr. Hall-Ellis should be excluded because her opinions are
`
`
`
`conclusory and unreliable. Fed. R. Evid. 702. Petitioner relies on Dr. Hall-Ellis’
`
`Declaration as evidence of when Exhibit 1005 (“the Swimmer Document”) became
`
`publicly available. However, Dr. Hall-Ellis, while purportedly experienced with
`
`7
`
`
`
`
`MARC Records, does not claim to have any actual knowledge as to whether a
`
`Patent Owner’s Motion to Exclude
`IPR2015-01892 (U.S. Patent No. 8,677,494)
`
`person of ordinary skill in the art would have been able to locate the Swimmer
`
`Document, which is the requirement for establishing that a document was publicly
`
`accessible. Kyocera Wireless Corp. v. Int’l Trade Com’n, 545 F.3d 1340, 1350
`
`(Fed. Cir. 2008) (to be publicly available prior art, there must be a “satisfactory
`
`showing that such document has been disseminated or otherwise made available to
`
`the extent that persons interested and ordinarily skilled in the subject matter or art
`
`exercising reasonable diligence, can locate it.”) (internal quotation marks omitted)
`
`(quoting SRI Int’l v. Internet Sec. Sys. Inc., 511 F.3d 1186, 1194 (Fed. Cir. 2008)).
`
`The mere fact that a MARC Record was created for a document is not evidence
`
`that it was actually accessible to the public. In fact, Dr. Hall-Ellis admitted during
`
`her deposition that the date on the MARC record for the Swimmer document she
`
`reviewed did not indicate whether the Swimmer Document, as Petitioner relies
`
`upon it, was publicly available at the Virus Bulletin International Conference. See
`
`Ex. 2011, Hall-Ellis Tr. at 60:17-61:9.
`
`Further, Dr. Hall-Ellis’ testimony should be excluded because she testified
`
`that she did not have personal knowledge of the statements made in Ex. 1006. See
`
`Fed. R. Evid. 602. Specifically, Dr. Hall-Ellis admitted that she never attended the
`
`Virus Bulletin Proceedings which Exhibit 1005 is purportedly from, did not view
`
`the Swimmer Document on the asserted publication date, and had never spoken to
`
`8
`
`
`
`
`any individual who had attended the conference. Ex. 2011, Hall-Ellis Tr. at 39:4-
`
`Patent Owner’s Motion to Exclude
`IPR2015-01892 (U.S. Patent No. 8,677,494)
`
`8; 40:2-14; 44:19–25. Dr. Hall-Ellis claims that Exhibit 1005 appeared in the Fifth
`
`Virus Bulletin International Conference, “as can be seen from Symantec Ex.
`
`1010,” yet she does not state that Exhibit 1005 was publicly available as of any
`
`date, and does not profess to have any personal knowledge on this issue. Ex. 1006,
`
`¶ 18.
`
`To the extent that Dr. Hall-Ellis relies on Ex. 1011 (MARC Record) to
`
`support her statement that the Swimmer Document was publicly available as of
`
`December 1, 1995, she does not identify any foundation establishing a connection
`
`between what is identified within the MARC Record and the Swimmer Document
`
`that has been produced in the current proceeding. Specifically, Dr. Hall-Ellis
`
`testified that the MARC record (Ex. 1011) demonstrates that the purported
`
`Swimmer Document was available as of December 1, 1995 because a cataloger at
`
`the University of Washington Library created the MARC record. Ex. 1006, ¶ 19.
`
`However, there is no indication that Exhibit 1005 (the version of the Swimmer
`
`Document that Petitioner relies upon in its Petition) and Exhibit 1010 (a different
`
`version of Swimmer that Dr. Hall-Ellis relies upon in her Declaration) are from the
`
`University Washington Library or that the MARC record even corresponds to the
`
`Swimmer Document. Ex. 1006, ¶ 19.
`
`Accordingly, Dr. Hall-Ellis’ testimony fails to authenticate Exhibits 1005
`
`9
`
`
`
`
`and 1010, and is unreliable and conclusory as to the date the Swimmer Document
`
`Patent Owner’s Motion to Exclude
`IPR2015-01892 (U.S. Patent No. 8,677,494)
`
`that Petitioner relies on was publicly available. For these reasons, Ex. 1006 is not
`
`relevant and inadmissible under FRE 401, FRE 402, FRE 602 and FRE 901.
`
`VI. The Board Should Exclude the Swimmer Document (Exs. 1005, 1010,
`1010v2 and 1010v3)3.
`The Board should exclude the Swimmer Document (Exs. 1005, 1010,
`
`1010v2 and 1010v3) as unauthenticated, hearsay and irrelevant.
`
`First, Petitioner failed to authenticate the Swimmer Document as a
`
`document that was publicly available in 1995. Specifically, Petitioner offers no
`
`evidence of the publication date beyond the Hall-Ellis Declaration, itself
`
`inadmissible for the reasons discussed above, and by pointing to the dates on the
`
`face of the document. “To satisfy the requirement of authenticating or identifying
`
`an item of evidence, the proponent must produce evidence sufficient to support a
`
`finding that the item is what the proponent claims it is.” Fed. R. Evid. 901.
`
`3 Petitioner explicitly defined Exhibit 1005 as “Swimmer,” which is the Swimmer
`
`Document that Petitioner relies on throughout its Petition. See Paper 1 at v.
`
`However, to the extent the Board determines that Petitioner may rely on Exhibit
`
`1010, 1010v2 and 1010v3 as the Swimmer Document, these Exhibits have
`
`similarly not been authenticated, have dates which are hearsay, and are accordingly
`
`not relevant.
`
`10
`
`
`
`Patent Owner’s Motion to Exclude
`IPR2015-01892 (U.S. Patent No. 8,677,494)
`
`
`The Swimmer Document bears a date of September 1995 and a copyright
`
`date of 1995, neither of which is sufficient to authenticate Swimmer as a document
`
`that was publicly available as of 1995. The mere appearance of a date on a
`
`document is insufficient to establish the date of when the document was available
`
`to the public. See, e.g., TRW Automotive U.S. LLC v. Magna Elecs. Inc., Case
`
`IPR2014-01347, Paper 25 at 5–12 (P.T.A.B. Jan. 6, 2016) (granting patent owner’s
`
`motion to exclude prior art for lack of authentication); Hilgraeve, Inc. v. Symantec
`
`Corp., 271 F. Supp. 2d 964, 975 (“If anything, the dates imprinted upon these
`
`documents establish simply the date of copyright, or the date that the document
`
`was created or printed.… A date imprinted on a document, without more, does not
`
`prove by clear and convincing evidence [when it] was known or used by others in
`
`this country…”).
`
`The copyright date on the Swimmer Document is insufficient, as a matter of
`
`law, to establish that it qualifies as a printed publication, let alone was accessible to
`
`the public in 1995. See, e.g., TRW Automotive U.S. LLC v. Magna Elecs. Inc.,
`
`Case IPR2014-01347, Paper 25 at 5–12 (P.T.A.B. Jan. 6, 2016) (“Although [a]
`
`copyright notice is probative that IEEE owns a copyright to the article, it is not
`
`probative that the article was ever published by IEEE or anyone else.”); Stryker
`
`Corp. v. Karl Storz Endoscopy-Am., Inc., Case IPR2015-00677 at 18–19 (P.T.A.B.
`
`Sept. 2, 2015) (Paper 15) (a copyright notice does not establish when a document
`
`11
`
`
`
`
`was publicly accessible under patent law); In re Lister, 583 F.3d 1307, 1316-17
`
`Patent Owner’s Motion to Exclude
`IPR2015-01892 (U.S. Patent No. 8,677,494)
`
`(Fed. Cir. 2009) (finding that a manuscript that had a copyright date and was
`
`available in the Copyright Office was not publicly accessible); CNET Networks,
`
`Inc. v. Etilize, Inc., 584 F. Supp. 2d 1260, 1273-74 (N.D. Cal. 2008) (finding that a
`
`copyright date does not prove that a reference was publicly accessible); iOnROAD
`
`Ltd. v. Mobileye Techs. Ltd., Case IPR2013-00227, Paper 18 at 3, 16 (P.T.A.B.
`
`Aug. 27, 2013) (stating that a copyright date does not mean that a reference was
`
`published). Accordingly, the Board should exclude the Swimmer Document
`
`because it was not properly authenticated.
`
`Second, the copyright date on the Swimmer Document is itself inadmissible
`
`hearsay. Hearsay is an out-of-court statement offered to prove the truth of the
`
`matter asserted. Fed. R. Evid. 801. Petitioner attempts to rely on the copyright
`
`date for a hearsay purpose, i.e., to prove the truth of the contention that the
`
`Swimmer Document was publicly accessible as a printed publication as of
`
`September 1995. Hilgraeve, Inc. v. Symantec Corp., 271 F. Supp. 2d 964, 974 and
`
`n.4 (E.D. Mich. 2003) (“Plaintiff correctly notes that the dates imprinted on these
`
`documents are hearsay when offered to prove the truth of the matter asserted, that
`
`is, that SAM 1.3 was accessible to the public as of the date set forth on the
`
`documents”) (citing Fed. R. Evid. 801(c)) (citations omitted). Additionally, such
`
`dates on a reference are insufficient, as a matter of law, to prove by clear and
`
`12
`
`
`
`
`convincing evidence that a reference was publicly available. No hearsay exception
`
`Patent Owner’s Motion to Exclude
`IPR2015-01892 (U.S. Patent No. 8,677,494)
`
`applies. Therefore, the copyright date is hearsay under FRE 801, and is
`
`inadmissible under FRE 802 and FRE 803.
`
`Third, the Swimmer Document should be excluded as irrelevant, because
`
`Petitioner fails to establish it was available as prior art. Evidence is relevant if (1)
`
`it has any tendency to make a fact more or less probably than it would be without
`
`the evidence, and (2) the fact is of consequence in determining the action. Fed. R.
`
`Evid. 401. A Petitioner can challenge the validity of a patent based only on prior
`
`art patents and printed publications. 35 U.S.C. § 311(b). It is Petitioner’s burden
`
`to establish that a document is a “printed publication” by demonstrating that the
`
`document was publicly accessible to persons concerned with the prior art to which
`
`the document relates. ServiceNow, Inc. v. Hewlett-Packard Co., Case IPR2015-
`
`00716, Paper 13 at 8, 15–17 (P.T.A.B. Aug. 26, 2015) (denying institution because
`
`Petitioner did not meet its burden of establishing that a reference is prior art); see
`
`also In re Wyer, 655 F.2d 221, 227 (C.C.P.A. 1981).
`
`As discussed above, the Swimmer Document is unauthenticated, is
`
`inadmissible hearsay, and is not prior art. Accordingly, the Swimmer Document
`
`cannot be relevant in determining whether the ’494 Patent is valid. Further, as
`
`discussed above, Petitioner cannot establish the relevance of the Swimmer
`
`Document based on any of the belated evidence improperly filed with its Reply,
`
`13
`
`
`
`
`including Ex. 1026 (University of Washington Library Copy of Virus Bulletin
`
`Patent Owner’s Motion to Exclude
`IPR2015-01892 (U.S. Patent No. 8,677,494)
`
`Proceedings), Ex. 1037 (Supplemental Declaration of Sylvia Hall-Ellis), Ex. 1038
`
`(Declaration of Richard Ford), and Ex. 1041 (Declaration of Joseph Kiegel).4
`
`Allowing the Petitioner to rely on the Swimmer Document as prior art would
`
`be unfairly prejudicial to Patent Owner under FRE 403, given that it is
`
`unauthenticated, its publication date is hearsay, and the document is irrelevant. For
`
`all of the reasons discussed above, the Board should exclude the Swimmer
`
`Document.
`
`VII. Conclusion
`For the foregoing reasons, the Board should grant Patent Owner’s Motion to
`
`Exclude.
`
`
`
`
`
`
`4 To the extent the Board determines Exhibits 1026, 1037, 1038 and 1041 are
`
`timely and admissible, none of these Exhibits establish the date Exhibit 1005
`
`became publicly available. Specifically, Exhibits 1026, 1037, and 1041 are only
`
`related to a University of Washington library version of Exhibit 1005, and Exhibit
`
`1038 is Dr. Ford’s cites to a different version of Exhibit 1005. Therefore, Exhibit
`
`1005, as relied upon by Petitioner, is unauthenticated under FRE 901 and has no
`
`relevance under FRE 401–402.
`
`14
`
`
`
`
`
`Dated: November 9, 2016
`
`Patent Owner’s Motion to Exclude
`IPR2015-01892 (U.S. Patent No. 8,677,494)
`
`Respectfully submitted,
`
`
`
`
`
`/James Hannah/
`
`James Hannah (Reg. No. 56,369)
`jhannah@kramerlevin.com
`Kramer Levin Naftalis & Frankel LLP
`990 Marsh Road
`Menlo Park, CA 94025
`Tel: 650.752.1700 Fax: 650.752.1800
`
`
`
`Jeffrey Price (Reg. No. 69,141)
`jprice@kramerlevin.com
`Kramer Levin Naftalis & Frankel LLP
`1177 Avenue of the Americas
`New York, NY 10036
`Tel: 212.715.7502 Fax: 212.715.8302
`
`Michael Kim (Reg. No. 40,450)
`mkim@finjan.com
`Finjan, Inc.
`2000 University Ave., Ste. 600
`E. Palo Alto, CA 94303
`Tel: 650.397.9567
`
` (Case No. IPR2015-01892) Attorneys for Patent Owner
`
`
`
`15
`
`
`
`
`
`
`
`Patent Owner’s Motion to Exclude
`IPR2015-01892 (U.S. Patent No. 8,677,494)
`
`CERTIFICATE OF SERVICE
`
`Pursuant to 37 C.F.R. § 42.6(e), the undersigned certifies that a true and
`
`correct copy of the foregoing Patent Owner’s Motion to Exclude was served on
`
`November 9, 2016, by filing this document through the Patent Review Processing
`
`System as well as delivering via electronic mail upon the following counsel of
`
`record for Petitioner and Joinder Petitioner:
`
`Daniel A. Crowe
`BRYAN CAVE LLP
`One Metropolitan Square
`211 N. Broadway, Suite 3600
`St. Louis, MO 63102
`dacrowe@bryancave.com
`
`
`
`
`
`
`
` /James Hannah/
`James Hannah (Reg. No. 56,369)
`Kramer Levin Naftalis & Frankel LLP
`990 Marsh Road,
`Menlo Park, CA 94025
`(650) 752-1700
`
`16
`
`Joseph J. Richetti
`BRYAN CAVE LLP
`1290 Avenue of the Americas
`New York, NY 10104
`joe.richetti@bryancave.com
`
`
`
`Michael T. Rosato
`Andrew S. Brown
`WILSON SONSINI GOODRICH
`& ROSATI
`701 Fifth Ave., Ste. 5100
`Seattle, WA 98104
`mrosato@wsgr.com
`asbrown@wsgr.com
Accessing this document will incur an additional charge of $.
After purchase, you can access this document again without charge.
Accept $ Charge
Still Working On It
This document is taking longer than usual to download. This can happen if we need to contact the court directly to obtain the document and their servers are running slowly.
Give it another minute or two to complete, and then try the refresh button.
A few More Minutes ... Still Working
It can take up to 5 minutes for us to download a document if the court servers are running slowly.
Thank you for your continued patience.
This document could not be displayed.
We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.
Your account does not support viewing this document.
You need a Paid Account to view this document. Click here to change your account type.
Your account does not support viewing this document.
Set your membership
status to view this document.
With a Docket Alarm membership, you'll
get a whole lot more, including:
- Up-to-date information for this case.
- Email alerts whenever there is an update.
- Full text search for other cases.
- Get email alerts whenever a new case matches your search.
One Moment Please
The filing “” is large (MB) and is being downloaded.
Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.
Your document is on its way!
If you do not receive the document in five minutes, contact support at support@docketalarm.com.
Sealed Document
We are unable to display this document, it may be under a court ordered seal.
If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.
Access Government Site
